A Lawful Search In Mexico

No Protection For Foreigners Who Violate U.s. Law Abroad

March 7, 1990|By James Kilpatrick, Universal Press Syndicate

WASHINGTON — A Mexican citizen is no part of 'the people' whose rights are made secure by the Fourth Amendment.

This is the dire scenario: A law-abiding American citizen is peacefully asleep in his own bed in his own home. Crash! Soviet police have just battered down the front door. They search his house for evidence that the citizen has violated Soviet law.

The outraged homeowner raises an outcry, but to no avail. The Soviet cops explain that they are doing in the United States only what the Supreme Court has authorized U.S. officers to do abroad. What is sauce for the goose is sauce for the gander.

The scenario is phony. Civil libertarians have missed two key factors in the case decided by the Supreme Court on Feb. 28. One element is factual; the other is constitutional.

Take the facts first. In January 1986, Mexican police, acting at the request of our Drug Enforcement Agency, arrested Rene Martin Verdugo-Urquidez in Mexico and turned him over to a Border Patrol station in Calexico, Calif.

Walter White, the assistant special agent in charge of the DEA office in Mexico City, then set in motion the chain of events that led to the high court's decision. White wanted to search the suspect's residences in Mexicali and San Felipe.

Note what Chief Justice William Rehnquist said in the majority opinion: ''After several attempts to reach high-ranking Mexican officials, White eventually contacted the director general of the Mexican Judicial Police (MFJP), who authorized the searches and promised the cooperation of Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP searched respondent's properties and seized certain documents. In particular, the search of the Mexicali residence uncovered a tally sheet, which the government believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States.''

The point is that the search in Mexico clearly was authorized under Mexican law. It was undertaken with the specific approval and cooperation of Mexican officials. The Washington Post wonders fearfully what the reaction would be if Mexican, French or Korean police were allowed to search American homes without demonstrating probable cause. Rehnquist's opinion makes it clear that the court has sanctioned nothing of the kind.

Critics of the court's ruling also have gone astray on the constitutional issue.

The Fourth Amendment protects the right of the people to be secure from unreasonable searches and seizures. It requires that warrants be issued only after ''probable cause'' has been established to the satisfaction of an American magistrate.

But to whom does the amendment apply? As Rehnquist noted, the amendment goes to the right of ''the people.'' Who are ''the people''? That is the crux of the matter. The Constitution makes meticulous use of the noun.

The preamble begins, ''We the people.'' Members of the House are to be chosen ''by the people of the several states.'' The First Amendment protects the right of ''the people'' peaceably to assemble. The Second Amendment secures the right of ''the people'' to keep and bear arms. The Ninth and 10th Amendments also refer to ''the people.''

In other provisions of the Constitution we find ''persons'' or ''citizens.'' Five members of the court agreed that for Fourth Amendment purposes, ''the people'' are those who are part of the national community or who have developed sufficient connection with the United States to be considered part of that community.

On this reasoning, a Mexican citizen is no part of ''the people'' whose rights are made secure by the Fourth Amendment.

Neither is the amendment's warrant requirement applicable, and for the best of all reasons: A warrant from a U.S. magistrate carries no weight whatever in Mexico.

Since the arrest in January 1986, Verdugo-Urquidez has been convicted in a separate prosecution for his involvement in the kidnapping and torture murder of DEA Special Agent Enrique Camarena Salazar. The smuggling case just decided turns on the admissibility of the evidence seized in Mexico.

My own feeling is that of course the evidence should be admitted.

If the court's decision paves the way for using evidence seized in Panama in the prosecution of Manuel Noriega, so much the better.

Foreign nationals who brazenly violate U.S. law in their own countries cannot wrap themselves in our Fourth Amendment. The amendment isn't for their protection. It's for ours.